SAMWU obo Mathabela v Dr JS Moroka Local Municipality (J2242/10) [2011] ZALCJHB 195 (28 January 2011)

SAMWU obo Mathabela v Dr JS Moroka Local Municipality (J2242/10) [2011] ZALCJHB 195 (28 January 2011)

The court held that the respondent is contractually bound to constitute the disciplinary enquiry in accordance with the individual applicant's contract of employment, which expressly incorporates the disciplinary code and procedure of the South African Local Government bargaining council. The respondent's appointment of practising legal practitioners as chairperson and prosecutor is a breach of these contractual terms, as the contract requires such appointments to be made from specified ranks excluding legal practitioners. The respondent's arguments regarding impossibility and jurisdiction were rejected, as the contract anticipates circumstances where the municipal manager is the subject...

Citation
[2011] ZALCJHB 195
Parties
Applicant: SAMWU obo Monica Mathabela; Respondent: Dr JS Moroka Local Municipality
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
28 January 2011
Case Number
J2242/10
Procedural Posture
Urgent Application / Ruling on Urgent Application for Interdict and Declaratory Relief
Outcome
Application partially granted: respondent interdicted from proceeding with disciplinary enquiry constituted in breach of contract; no order made on suspension; no order as to costs.
Judges
Van Niekerk
Legal Topics
Disciplinary Code and Procedure, Contractual Enforcement, Collective Agreement Interpretation, Suspension of Employee
Labour Law Civil Procedure Disciplinary Code and Procedure Contractual Enforcement Collective Agreement Interpretation Suspension of Employee

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 3 Party arguments 2
Sign in to unlock

Parties

SAMWU obo Monica Mathabela

Applicant

Dr JS Moroka Local Municipality

Respondent

Procedural Posture

Urgent Application / Ruling on Urgent Application for Interdict and Declaratory Relief

Legal Issues

  1. 1 Whether the respondent's constitution of the disciplinary enquiry complies with the individual applicant's contract of employment.
  2. 2 Whether the respondent is entitled to appoint legal practitioners as chairperson and prosecutor of the disciplinary enquiry.
  3. 3 Whether the respondent's conduct in proceeding with the enquiry constitutes a breach of contract.

Ratio Decidendi

The court held that the respondent is contractually bound to constitute the disciplinary enquiry in accordance with the individual applicant's contract of employment, which expressly incorporates the disciplinary code and procedure of the South African Local Government bargaining council. The respondent's appointment of practising legal practitioners as chairperson and prosecutor is a breach of these contractual terms, as the contract requires such appointments to be made from specified ranks excluding legal practitioners. The respondent's arguments regarding impossibility and jurisdiction were rejected, as the contract anticipates circumstances where the municipal manager is the subject...

Court Disposition

Application partially granted: respondent interdicted from proceeding with disciplinary enquiry constituted in breach of contract; no order made on suspension; no order as to costs.

Orders

  • The constitution of the disciplinary enquiry convened on 28 January 2011 does not comply with the individual applicant's contract of employment, and the respondent's conduct in persisting with the enquiry is a breach of contract.
  • The respondent is interdicted and restrained from proceeding with the enquiry referred to in paragraph 1.